Strachan v Colourwise Nursery (NSW) Pty Ltd - [2025] NSWPIC 328

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Strachan v Colourwise Nursery (NSW) Pty Ltd [2025] NSWPIC 328
APPLICANT:	Deborah Lee Strachan
RESPONDENT:	Colourwise Nursery (NSW) Pty Ltd
MEMBER:	Catherine McDonald
DATE OF DECISION:	10 July 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987 (1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); knee injury in 2014 but no claim for compensation until 2021; section 261 of the 1998 Act - Hou v Zhen Qui Hou Pty Ltd; section 261(9) – register of injuries; ignorance - Eason v Bluescope Steel Limited and Gregson v L & M Dimasi Pty Ltd; other reasonable cause - Albury Real Estate v Rouse, Garrett v Tooheys Ltd, and Jones v Qantas Airways Pty Ltd; serious and permanent disablement - Broken Hill Proprietary Company v Kuhna; incapacity; Held – award for weekly compensation and section 60 expenses.
DETERMINATIONS MADE:	1. The respondent is to pay the applicant weekly compensation of $659.80 as indexed from 4 June 2021 until the end of the second entitlement period. 2. I grant liberty to apply if the parties are unable to agree on the compensation payable as a result of order 1. 3. Pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act), the respondent is to pay the applicant’s past medical, hospital and related expenses. 4. Pursuant to s 60 of the 1987 Act, the respondent is to pay the applicant’s costs of and incidental to left total knee replacement surgery.

STATEMENT OF REASONS

BACKGROUND

Deborah Strachan was employed by Colourwise Nursery (NSW) Pty Ltd (Colourwise) when she suffered an injury to both of her knees on 1 December 2014. Ms Strachan continued to work for Colourwise until April 2020, when her employment was terminated.
Ms Strachan did not make a formal claim for compensation until 1 February 2021 when she lodged a claim form.
There is now no dispute that the incident occurred on 1 December 2014 in which Ms Strachan fell onto both of her knees. There is also no dispute that the surgery that Ms Strachan has undergone and proposes to undergo is reasonably necessary medical treatment but Colourwise disputed that it is because of an injury within the meaning of the Workers Compensation Act 1987 (the 1987 Act). The parties agree on pre-injury average weekly earnings.
Until the conciliation conference on 5 June 2025, Colourwise disputed that Ms Strachan gave notice of her injury in accordance with s 254 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
The issues which remain in dispute are:
(a) the application of s 261 of the 1998 Act, and
(b) the extent of any incapacity for work.
Section 261 of the 1998 Act relevantly provides:
“261 Time within which claim for compensation must be made
(1) Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWPIC 328
Decision Date: 10 July 2025

CaseChat Overview and Summary

In the case of Strachan v Colourwise Nursery (NSW) Pty Ltd, the primary dispute involved the validity of a workers' compensation claim filed by Strachan against Colourwise Nursery, following a knee injury sustained in 2014. Strachan did not lodge a claim for compensation until 2021, raising questions about the timeliness and legitimacy of the claim under the relevant legislative frameworks. The legal issues centred on the interpretation and application of sections 261 and 261(9) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act), as well as the principles established in Hou v Zhen Qui Hou Pty Ltd regarding ignorance and other reasonable causes for the delay in filing the claim. Additionally, the court had to consider the nature and extent of Strachan's incapacity and whether the injury resulted in serious and permanent disablement, drawing on precedents such as Broken Hill Proprietary Company v Kuhna.

The court examined whether Strachan's ignorance of the injury or the consequences of the injury constituted a reasonable cause for the delay in lodging the claim, in line with decisions in Eason v Bluescope Steel Limited and Gregson v L & M Dimasi Pty Ltd. It was also necessary to assess whether other reasonable causes, as outlined in Albury Real Estate v Rouse, Garrett v Tooheys Ltd, and Jones v Qantas Airways Pty Ltd, applied to this case. Furthermore, the court had to determine if the injury resulted in a level of incapacity that warranted compensation under the 1998 Act, considering the evidence of serious and permanent disablement. The decision hinged on a comprehensive analysis of the legislative provisions, case law, and the factual circumstances of Strachan's injury and subsequent claim.

Upon review, the court found that the delay in filing the claim did not invalidate the compensation award, considering the principles established in the cited cases regarding ignorance and other reasonable causes. The court determined that Strachan's delay was justified under the relevant sections of the 1998 Act and acknowledged the existence of other reasonable causes that explained the late filing. Furthermore, the court concluded that Strachan's injury resulted in serious and permanent disablement, thereby warranting an award of weekly compensation and section 60 expenses. Consequently, the court ruled in favour of Strachan, ordering Colourwise Nursery to compensate Strachan for the injury sustained in 2014.

Orders